2of2Devon Anderson, the widow of the late Harris County District Attorney Mike Anderson, speaks at media conference after being appointed by Gov. Rick Perry to fill her husband's unexpired term Thursday, Sept. 26, 2013, in Houston. ( Melissa Phillip / Houston Chronicle )Photo: Melissa Phillip, Staff

Voters will decide in three months who will be Harris County's district attorney, but no matter the victor in November, marijuana prosecution in the largest city in Texas is about to change.

The Republican and the Democrat running for the top law enforcement post both have plans to change how drug users are prosecuted, mirroring attitudes about illegal drugs that seem to be softening across the country.

Incumbent Devon Anderson and challenger Kim Ogg have somewhat similar thoughts on dealing with misdemeanor marijuana possession, but are on polar opposites when it comes to trace amounts of crack cocaine, a perennial debate in Harris County.

On marijuana, both are proposing a diversion program, which offers the opportunity for offenders to avoid conviction and jail time.

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On marijuana

Devon Anderson's plan: Suspected users are detained and processed to see if they are eligible for diversion program, including whether it is a first offense. Successful completion of community service and classes mean no conviction.

Kim Ogg's plan: Suspects are cited but not detained. If they complete two days of picking up litter or other community service, there will not be a conviction, even for repeat offenders.

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Earlier this month, Anderson, a Republican, released to the Houston Chronicle general contours of a pilot plan for first-time marijuana offenders, which is still being developed with the Houston Police Department, the Harris County Sheriff's Office and other county law enforcement offices.

The biggest difference between Anderson's plan and the one announced last month by Ogg is whether those caught with the drug will be arrested and taken into custody.

Ogg also says her plan will save taxpayers millions.

Like a traffic ticket, Ogg's plan mandates that suspects with less than 4 ounces of marijuana be cited by officers, appear later in court, then spend two days picking up litter. Even repeat offenders are eligible for the program, which was codified in 2007 by a state law that allows police to treat some misdemeanors, like theft, graffiti and possession of marijuana, as ticketed offenses.

The program is commonly known as either "Cite & Release" or "Cite & Summons."

"Our tagline is 'No jail, no bail, no permanent record, if you earn it,'" the Democrat said during the unveiling.

The plan would also save taxpayers about $10 million, she said, money coming from jail and prosecution costs. More than 12,000 people in the county were charged with misdemeanor drug possession, she said, and spent an average of five days in jail.

The benefit to Ogg's plan, advocates said, is keeping police officers on the street instead of spending time bringing in low-level offenders.

"It doesn't make sense for people who are going to be released anyway to be driven across the county," said Joe Ptak, who heads Texans Smart on Crime, a group working to implement "Cite & Summons" across the state. "Having police on patrol is the most effective way to protect communities, and Cite & Summons gives communities the opportunity to do that."

Under Anderson's plan, scheduled to go into effect this fall, every suspect will be taken to a police substation, where they will be booked in to the system and evaluated.

If deemed a low-risk, first-time offender, the person will be eligible for the program, which dismisses the case pending completion of community service and possibly, classroom instruction. If the requirements are successfully completed, no conviction appears on the person's record.

Repeat offenders and those with prior convictions will be booked into jail and will not be eligible for the program.

"The new program still allows for the police to make an arrest," Anderson said in an email response to questions. A former felony court judge who presided over a drug court docket.

Under both plans, those who fail to comply with any of the requirements would be charged with the original case and arrested.

The movement by local officials to change marijuana prosecution is reflective of changing attitudes elsewhere, experts said,

Nathan Jones, a drug policy fellow at the Baker Institute at Rice University said he expects marijuana to be legal in Texas in about 10 years and cited other experts who think it may happen sooner.

"We're in the midst of a radical national change in terms of marijuana policy," Jones said, adding that 58 percent of Texans support regulating marijuana like alcohol - a statistic that mirrors with national numbers.

'Break free'

Even for harder drugs like cocaine and heroin, Jones said attitudes have shifted from punishing addicts to treating them.

And the election will raise again the different opinions on handling trace amounts of crack cocaine.

If elected, Ogg said, her first order of business will be to stop accepting criminal charges for people caught with cocaine residue in their mouths, on crack pipes and on other drug paraphernalia. The so-called "trace case" policy has see-sawed among the DAs. In 2012, GOP challenger Mike Anderson unseated incumbent Pat Lykos in part by attacking her policy of issuing misdemeanor tickets instead of arresting drug users for felonies in cases where police found tiny amounts of cocaine residue.

The issue was especially important to law enforcement agencies in 2012 and hinges on whether police officers should spend time and resources taking crack addicts to jail to be prosecuted.

He had argued that arresting low-level drug users was an effective tool for police to go after kingpins and high-level drug dealers. He also said it reduces crimes like burglaries, especially car break-ins, a position that was widely embraced by law enforcement unions.

Anderson reversed Lykos' policy shortly after taking office. His wife, who was appointed to the post after his death last year, adopted his stance.

"How the courts and (assistant district attorneys) handle these cases in court can help address the offender's problem with addiction," Anderson said in a written response. She said her administration offers treatment options and deferred adjudication when appropriate.

"This will ideally prevent future crimes, reduce the cost of prosecutions and help the offender break free of addiction."

The Houston Police Officers' Union refused to comment for this article.

'Not evidence-based'

Ogg's position is that police should be pursuing violent criminals, not low-level drug users. She said arresting crack users, especially after stopping them for violating what she called "arcane" municipal ordinances - like walking on the street where a sidewalk is provided - disproportionately affects low-income neighborhoods and minorities. Across the country, prosecution for crack, which is generally found in minority neighborhoods, has been widely criticized for stiffer penalties than powder cocaine, including in federal sentencing guidelines.

"It is not evidence-based for an individual to be stopped based on how he looks, where he is or what profile he fits, have him searched and arrested for drugs then claim that you're stopping burglaries, rapes and robberies," Ogg said. "The result of an 'ends justifies the means' methodology is a system that disproportionately affects minorities and poor people."

The Harris County DA's office is the largest in Texas and one of the largest in the country, with about 250 prosecutors on staff.

As the race to head the massive agency continues, Anderson has outraised Ogg by more than three to one, according to campaign reports filed last month. During the last reporting period, Anderson put $282,834 in her war chest while Ogg's efforts reaped $83,458.

Both spent more than $95,000 since the campaign filings were last filed in February. As of July 14, Anderson had $224,000 on hand leading Ogg who had $62,000.